Date: 20040623
Docket: T-1203-03
OTTAWA, Ontario, this 23rd day of June, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MINISTER OF HUMAN RESOURCES AND DEVELOPMENT
Applicant
and
THE ESTATE OF JOHN REISINGER
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the June 13, 2003 decision of the Canada Pension Plan - Old Age Security Review Tribunal ("the Review Tribunal"), which determined that payments of the Guaranteed Income Supplement Benefit ("GIS Benefit") should be made to the respondent irrespective of the failure to submit an application within the one year post-mortem deadline. The GIS Benefit supplements the Old Age Security Pension for pensioners without adequate other income upon which to live.
FACTS
[2] John Reisinger was born on January 14, 1916 and died in September, 2000. On May 17, 2001, Human Resources Development Canada ("HRDC") received an application for an Old Age Security Pension ("OAS Pension") submitted on behalf of his estate ("the respondent"). Although the application was dated November 24, 2000, it was sent on or around May 14, 2001 by solicitors acting on behalf of the respondent.
[3] By letter dated July 10, 2001, HRDC requested reasons why the late Mr. Resinger had not applied for an OAS Pension himself, and for additional documentation including proof of Canadian citizenship, residence in Canada, and income tax records; HRDC also forwarded two applications for the GIS benefit, with a request that the application and requested documents be returned within 90 days (approximately October 8, 2001). On January 28, 2002, the solicitors for the respondent returned the completed GIS application and the additional documentation required.
[4] By letter dated March 4, 2002, HRDC advised the respondent that it was yet to receive requested documents and information, and that if no response was received within 60 days it would assume the respondent no longer wished to apply for the benefit. The letter did not refer specifically to the GIS benefit, but stated that the letter was "in reference to the application for Old Age Security". By letter dated April 24, 2002, HRDC approved the OAS application received on May 17, 2001, but denied the application for the GIS benefit because it was received on February 1, 2002, after the one year statutory deadline to apply. On July 22, 2002, the respondent appealed the denial of the GIS Benefit to the Review Tribunal.
[5] On June 7, 2002, the respondent requested that the Minister reconsider the decision made in respect of the GIS. On August 29, 2003 the Minister decided not to exercise her discretion under section 32 of the Act to deem the GIS application to have been received within the statutory deadline due to an administrative error or erroneous advice in the administration of the OAS Pension and GIS benefit.
REVIEW TRIBUNAL'S DECISION
[6] The Review Tribunal found that the respondent did not apply for the GIS benefit until prompted to do so by HRDC in its letter of July 10, 2001. It also found that while HRDC had requested a response within 90 days it failed to mention the one year statutory deadline to apply, and that the deadline was never mentioned until April 4, 2002 when the GIS benefit application was denied. The Review Tribunal concluded that an administrative error had occurred because as late as March 4, 2002, HRDC was still seeking a response to its request for additional information even though the missing documentation had been sent to HRDC on January 28, 2002.
[7] The Review Board concluded that HRDC's initial 90 day notice and further 60 day notice subsequently amount to a waiver by HRDC of the statutory limitation period of one year, and that such waiver itself amounts to an administrative error warranting remedial action to place the respondent in the position of having applied for the GIS Benefit within the allowed post-mortem statutory period. At pages 7 of its decision, the Review Tribunal concludes:
Section 32 of the Old Age Security Act deals with the matter of administrative error.
Section 32 states that:
"...Where the Minister is satisfied that, as a result of... administrative error in the administration of this Act, any person has been denied a benefit, ...to which that person would have been entitled under this Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the...administrative error not been made."
Having determined that there was an administrative error on the part of HRDC in this matter the Tribunal is of the view that the Minister ought to take up such remedial action as she considers appropriate to place the estate of the late John Reisinger in the position of having applied to HRDC for a GIS Benefit within the post-mortem statutory period of September 30, 2000 to September 2001.
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RELEVANT LEGISLATION
[8] Section 2 of the Old Age Security Act, R.S.C. 1985, c. O-9 ("the Act"), defines "benefit" as:
| "benefit" means a pension, supplement or allowance; |
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« prestation » Pension, supplément ou allocation. |
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The "benefit" includes both the OAS Pension and the GIS benefit.
Subsections 27.1(1) and 28(1) of the Act deal with reconsiderations and appeals of benefit decisions as follows:
| Request for reconsideration by Minister
27.1 (1) A person who is dissatisfied with a decision or determination made under this Act that no benefit may be paid to that person, or respecting the amount of any benefit that may be paid to that person, may, within ninety days after the day on which the person is notified in the prescribed manner of the decision or determination, or within such longer period as the Minister may either before or after the expiration of those ninety days allow, make a request to the Minister in the prescribed form and manner for a reconsideration of that decision or determination.
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Appeal re benefits
28. (1) A person who makes a request under subsection 27.1(1) and who is dissatisfied with the decision of the Minister in respect of the request, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal under subsection 82(1) of the Canada Pension Plan. [...]
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Demande de révision par le ministre
27.1 (1) La personne qui se croit lésée par une décision de refus ou de liquidation de la prestation prise en application de la présente loi peut, dans les quatre-vingt-dix jours suivant la notification de la décision, selon les modalités réglementaires, ou dans le délai plus long que le ministre peut accorder avant ou après l'expiration du délai de quatre-vingt-dix jours, demander au ministre, selon les modalités réglementaires, de réviser sa décision.
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Appels en matière de prestation
28. (1) L'auteur de la demande prévue au paragraphe 27.1(1) qui se croit lésé par la décision révisée du ministre - ou, sous réserve des règlements, quiconque pour son compte -- peut appeler de la décision devant un tribunal de révision constitué en application du paragraphe 82(1) du Régime de pensions du Canada.
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[9] Post-mortem benefit applications are dealt with in section 29 of the Act, which provides in part:
| Application for benefit by estate, etc.
29. (1) Notwithstanding anything in this Act but subject to subsection (4), an application for a benefit that would have been payable to a deceased person who, prior to his death, would have been entitled, on approval of an application, to payment of that benefit under this Act may be made within one year after the person's death by the estate, the representative or heir of that person or by such person as may be prescribed by regulation. Benefits payable to estate or other persons
(2) Where an application is made pursuant to subsection (1), a benefit that would have been payable to a deceased person referred to in that subsection shall be paid to the estate or to such person as may be prescribed by regulation.
Application deemed to have been received on date of death
(3) Any application made pursuant to subsection (1) is deemed to have been received on the date of the death of a person who, prior to his death, would have been entitled, on approval of an application, to payment of a benefit under this Act.
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Demande de prestation par les ayants cause
29. (1) Par dérogation à la présente loi mais sous réserve du paragraphe (4), les personnes désignées par règlement, les ayants cause, le représentant ou l'héritier d'une personne qui, avant son décès, aurait eu droit, une fois sa demande agréée, au versement des prestations visées par la présente loi peuvent demander celle-ci dans l'année qui suit le décès.
Versement
(2) Dans le cas visé au paragraphe (1), la prestation est versée aux ayants cause ou aux personnes désignées par règlement.
Présomption
(3) La demande de prestation visée au paragraphe (1) est réputée avoir été reçue le jour du décès de la personne qui y aurait eu droit.
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[10] And section 32 of the Act deals with the Minister's discretion to remedy a situation where a benefit has been denied on the basis of erroneous information, or administrative error:
| Where person denied benefit due to departmental error, etc.
32. Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made. |
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Refus de prestation dû à une erreur du ministère
32. S'il est convaincu qu'une personne s'est vu refuser tout ou partie d'une prestation à laquelle elle avait droit par suite d'un avis erroné ou d'une erreur administrative survenus dans le cadre de la présente loi, le ministre prend les mesures qu'il juge de nature à replacer l'intéressé dans la situation où il serait s'il n'y avait pas eu faute de l'administration.
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ANALYSIS
[11] The sole issue raised in this application is whether the Review Tribunal exceeded its jurisdiction in deciding that the Minister should have exercised her discretion under section 32 of the Act to place the respondent in the position of having applied for the GIS benefit within the post-mortem statutory deadline. The applicant submits that the Federal Court of Appeal has confirmed in Canada (Minister of Human Resources Development) v. Tucker, 2003 FCA 278, [2003] F.C.J. No. 998 (F.C.A.)(QL) that the Review Tribunal cannot exercise such discretion on behalf of the Minister. The applicant submits that the application deadline can only be extended if the Minister is satisfied that the conditions outlined in section 32 of the Act have been met. The applicant submits that section 29 of the Act does not confer any discretion to extend the time allowed for applications.
[12] The respondent submits that section 32 of the Act does not apply in this case because it is only intended to apply to situations where an administrative error results in the denial of a benefit. The respondent argues that, in the present case, the administrative error actually resulted in the conferral of a benefit, since it allowed longer deadlines for the respondent's applications to be filed. The respondent submits that since this appeal is governed by section 28 of the Act, the Review Tribunal may have misdirected itself in reviewing the matter in light of section 32, rather than sections 27 and 28 of the Act.
[13] The respondent submits that since HRDC submitted to the jurisdiction of the Review Tribunal it is now estopped from objecting to its jurisdiction. The respondent submits that the applicant's conduct amounts to an abuse of process since it unfairly led the respondent to believe that time was not of the essence, and failed to warn that the application would be dismissed if not submitted within the one year deadline. The respondent submits that the applicant arbitrarily chose to ignore the additional 60 day extension while acknowledging the prior 90 day extension.
[14] I am satisfied that this application ought to be reviewed on the standard of correctness since what is at issue is the Review Tribunal's interpretation of section 32 of the Act and whether or not the Act indeed confers authority to HRDC or the Minister to waive statutorily imposed deadlines for benefit applications. These are purely questions of law.
[15] Having reviewed the evidence on record and the submissions of the parties, I am unable to accept the respondent's submissions. First, the respondent's case is not assisted by either the applicability or inapplicability of section 32 of the Act. What the record indicates is that the Minister declined to apply section 32 discretion because it was the failure to submit the GIS Benefit application on time that led to the denial of the benefit, and not an administrative error. HRDC's position is that the 90 day limit time limit to respond was allowed to compensate for any delay in responding to the respondent's original letter.
[16] This Court has repeatedly held that where Parliament has conferred Ministerial discretion by statute, a reviewing Court's role is restricted to ensuring that the discretion was not applied in an unreasonable manner, or in a manner contrary to law; it is not a reviewing Court's role to exercise that discretion in place of the Minister. Furthermore, the Federal Court of Appeal has held in Tucker, supra, that the Review Tribunal has no jurisdiction to review a decision of the Minister made under Section 32 of the Act. See also Canada (Minister of Human Resources Development) v. Mitchell, 2004 FC 437, [2004] F.C.J. No. 578 (F.C.)(QL).
[17] Secondly, the respondent's submission that the Minister is now estopped from objecting to the Review Tribunal's jurisdiction is without merit, since the applicant is entitled to object to an exercise of jurisdiction that is contrary to law, and the Review Tribunal's exercise of the Minister's discretion is such an act.
[18] Thirdly, I do not agree that the applicant's conduct amounts to an abuse of process, or that the applicant behaved in an arbitrary or unfair manner. I note that respondent received the GIS Benefit application forms in July 2001, approximately 60 days before the statutory deadline expired, yet the respondent did not take advantage of this opportunity. The applicant had no obligation to warn the respondent, who was represented by counsel, of a deadline clearly outlined in the Act. Section 29 of the Act pertains to all benefits, and not simply to the OAS pension.
[19] Finally, that the initial 90 day period to respond, and the further 60 day provision did not legally extend the post-mortem deadline for applications. The respondent's OAS application was in fact received on May 17, 2001, well within the one year deadline. The 90 and 60 day provisions were intended to allow the applicant to complete processing of the OAS application. The GIS Benefit application, on the other hand, was not submitted within the statutorily allowed deadline, and neither section 29 nor any other part of the Act allows for an extension. While the Minister may exercise discretion under section 32 of the Act to deem an application to have been received within the deadline, that discretion should not be confused with authority to alter a deadline already imposed by statute. To do so would be to ignore the unequivocal language of the Act. See also Canada (Attorney General) v. Bannerman (2003), 228 F.T.R. 281 (T.D.) at paragraph 15.
Minister's Decision dated August 29, 2003
[20] The respondent requests the Court to review the Minister's decision dated August 29, 2003 not to exercise her discretion under section 32 of the Act and deem the GIS application to have been received within the statutory deadline. First, the Court cannot review that decision unless the applicant applies for judicial review of that decision within 30 days of the decision or obtains an extension of time. Second, such a review would determine whether the Minister's discretionary decision was patently unreasonable, i.e. clearly wrong. The Minister has a wide discretion. Third, if the Court reviewed this decision, the Court may conclude that it was patently unreasonable because the decision did not consider the additional 60 day extension offered by HRDC in its letter dated March 4, 2002. Upon receipt of that letter, the respondent wrote HRDC on March 11, 2002 to advise that the GIS application had in fact been submitted on January 28, 2002. Clearly the administration of this GIS application has been infected with administrative errors by HRDC, and the Minister's decision under section 32 of the Act failed to consider the HRDC letter dated March 4, 2002 which erroneously granted the respondent a further 60 day deadline, after the GIS application had in fact already been received. Such failure may be patently unreasonable since the OAS pension and the GIS benefit are part and parcel of the pension benefits under the Act.
[21] If the respondent files an application for judicial review of the Minister's decision, I will consider an extension of time, and assume jurisdiction of the application to expedite and minimize the costs to the parties and the Court. Perhaps such an application will not be necessary, and the Minister will reconsider the decision under section 32 of the Act in view of the Court's comments.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is allowed;
2. The decision of the Review Tribunal is set aside; and,
3. Any further application with respect to this matter should be brought to the attention of the Honourable Mr. Justice Kelen.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1203-03
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES AND DEVELOPMENT
Applicant
and
THE ESTATE OF JOHN REISINGER
Respondent
DATE OF HEARING: June 22, 2004
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR
ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: June 23, 2004
APPEARANCES BY: Mr. Michel Mathiew
For the Applicant
Submissions made in writing without
the appearance of counsel
For the Respondent
SOLICITORS OF RECORD: Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
For the Applicant
Cawood Walker Demmans Baldwin
Barristers and Solicitors
North Battleford, Saskatchewan
For the Respondent
FEDERAL COURT
Date: 20040623
Docket: T-1203-03
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
THE ESTATE OF JOHN REISINGER
Respondent
REASONS FOR ORDER
AND ORDER